Webb v. California Depart. of Corrections and Rehabilitation et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 06/28/12 ordering plaintiff's application to proceed in forma pauperis 3 is denied without prejudice. The clerk of the court shall send plaintiff a new application to proceed in forma pauperis by a prisoner. Plaintiff shall submit within 30 days from the date of this order, a completed application to proceed in forma pauperis. Plaintiff's 02/09/12 request for appointment of counsel 2 is denied. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD R. WEBB, SR.,
Plaintiff,

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vs.

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No. 2:12-cv-0345 EFB P

CALIFORNIA DEPART. OF CORRECTIONS
AND REHABILITATION, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983.1 He requests leave to proceed in forma pauperis and that the court appoint

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counsel.
To proceed with a civil action a plaintiff must pay the $350 filing fee required by 28

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U.S.C. § 1914(a) or request leave to proceed in forma pauperis and submit a properly completed

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affidavit and trust account statement required by 28 U.S.C. § 1915(a). Plaintiff has submitted his

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trust account statement, but has not filed an affidavit using the form application for this district.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. Dckt. No. 5; see E.D.
Cal. Local Rules, Appx. A, at (k)(4).
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Accordingly, plaintiff’s in forma pauperis application is denied without prejudice to filing the

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application on the proper form.

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Plaintiff also seeks appointment of counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). The court finds there are no exceptional circumstances in this

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case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis (Dckt. No. 3) is denied without

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prejudice;

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2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In
Forma Pauperis By a Prisoner;

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3. Plaintiff shall submit, within thirty days from the date of this order, a completed

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application to proceed in forma pauperis. Plaintiff’s failure to comply with this order will result

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in this action being dismissed without prejudice.

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4. Plaintiff’s February 9, 2012, request for appointment of counsel (Dckt. No. 2) is

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denied.

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DATED: June 28, 2012.

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